JUSTICE V.K.JAIN (ORAL)

One Neerja Bhatia booked a residential flat with the opposite party in a project namely ‘Parsvnath Exotica’ which the opposite party was to develop in Sector 53 of Gurgaon. Flat No. D6-1201  in Tower D-6  of the aforesaid project was allotted to her for a basic sale price of Rs.1,30,20,000/-. She also executed a Flat Buyer Agreement dated 16.6.2006 with the OP incorporating their respective obligations in respect of the said transaction. In terms of Clause 10(a) of the agreement, the construction of the flat was likely to be completed within 36 months of commencement of construction of the particular block in which the flat was located though a grace period of six months was also available to the builder for the purpose.

2.      The aforesaid allotment was later purchased by the complainant and was endorsed in his name vide endorsement dated 18.12.2006. Vide letter dated 26.11.2009, the OP changed the allotment to Unit No.D4-12A02 in Tower D-4 of the project.

3.      It is not disputed before me that the construction of Tower-D4 had commenced by November, 2006. The possession therefore, ought to have been delivered by May 2010 even after including the grace period of six months. Since the possession has not even been offered to him despite he having paid Rs.12675000/- to the OP as against the basic sale price of 1,30,20,000/-, the complainant is before this Commission seeking refund of the amount paid by him to the OP alongwith compensation, etc.

4.      The OP has filed its written version contesting the complaint but has neither disputed the allotment made to the predecessor-in-interest of the complainant nor the endorsement of the said allotment in favour of the complainant. It is also not disputed that the allotment was later changed from Tower D-6 to Tower D-4. It is also not disputed before me that the complaint has been resisted on the grounds which this Commission has already rejected in several other consumer complaints including CC No.1877 of 2016 – Vishal Malhotra & Anr. Vs. M/s Parsvnath Developers Ltd. & Anr. decided on 7.2.2019. The decision of this Commission in Vishal Malhotra (supra) to the extent, it is relevant reads as under:-

“3.      Though the written version has been filed and the allotment made to Sh. Anil Agarwal as well as the transfer of the said allotment to the complainant has been admitted, the complaint has been resisted on the ground which admittedly, this Commission has already rejected in some previous Consumer Complaints including CC No. 1878 of 2016 Rohit Agarwal & Anr. Vs. M/s Parasvnath Developers Ltd. & Anr. decided on 30.07.2018.  In the written version field by the OP, it has not disputed the payment received in respect of the allotted flat. 

          The decision of this Commission in Rohit Agarwal & Anr. (supra) to the extent it is relevant, reads as under:

3.      The grounds on which the complaint has been resisted have already been rejected by this Commission in Consumer Complaint No. 91 of 2009 Col. Rajyavardhan Singh Rathore Vs. M/s. Parsvnath Developers Ltd. decided on 21.1.2016  and Consumer Complaint No.127 of 2017 – Mallika Raghavan Vs. Parsvnath Developers Ltd. decided on 19.4.2018. The decision of this Commission in   Mallika Raghavan (supra) to the extent it is relevant, reads as under:-

“4.      The learned counsel for the complainant has drawn my attention to the decision of this Commission dated 21.1.2016 in Consumer Complaint No. 91 of 2009 Col. Rajyavardhan Singh Rathore Vs. M/s. Parsvnath Developers Ltd., wherein the opposite party had allotted a flat in Tower D-4 of this very project to the complainant therein but had failed to deliver possession of the said flat to hm.  The complaint instituted by Col. Rajyavardhan Singh Rathore was resisted by the opposite party, primarily on the ground that the recession had hit Indian economy over past two years and Real Estate Sector was one of the worst hit sectors, as a result of said slow down.  The aforesaid plea taken by the opposite party was rejected by this Commission, noticing that the slowdown in the economy was not one of the grounds which could justify the delay in completion of the construction, since Clause 10(a) of the Agreement between the parties referred only to restrictions/ restraints from any Court / Authority, non-availability of building material, disputes with contractors / workforce etc., and the circumstances beyond the control of the developers.  It was noted that there was no evidence of the opposite party having constraints on account of such a reason in carrying out or completing the construction of the flat.  It was further noticed that there was no evidence of non-availability of building material or the opposite party having dispute with any contractor / workforce deployed at the site of the construction.  It was held that the delay in completion of the project unjustified.  The opposite party was therefore, directed to complete the construction of the flat in all respects, deliver its possession within eight months from the order of this Commission and also pay compensation in terms of the said order to the complainants therein namely Col. Rajyavardhan Singh Rathore.

5.      In my view, lack of adequate sources of finance with the opposite party cannot be a justified ground for the delay in completion of the construction.  It was for the opposite party to arrange the finance required for completion of the project within the time stipulated in this regard and it has only to blame itself if it could not arrange the requisite finance.  As far as shortage of the labour is concerned, there is no evidence of the labour not being available during the relevant period.  Rise in the man power and material cost or approval and procedural difficulties cannot justify the delay in completion of the project.” 

4.      I specifically asked the learned counsel for the opposite parties as to whether they are in a position to give legal possession of the allotted flat to the complainants. The learned counsel submits that they are yet to receive the requisite Occupancy Certificate though they have already applied for the same. He further states that since the issuance of the Occupancy Certificate is not in their hands, they are not a position to commit any particular time-limit within which they would obtain the requisite Occupancy Certificate from the concerned authorities. As noted earlier, the complainants wanted possession of the flat within 8 months of the institution of the complaint. Alternatively they are seeking refund of the amount paid by them to the opposite party along with compensation etc. More than above one year and nine months have expired since this complaint was instituted. Considering that the possession of the flat ought to have been delivered by 4.11.2014 inclusive of the grace period of 6 months, the complainants cannot be compelled to wait further for the possession of the allotted flat. This is more so, when the OP neither possesses the requisite Occupancy Certificate nor is it in a position to commit any particular time-limit for obtaining the said certificate. The complainants, in these circumstances, are entitled to refund of the amount paid by them along with appropriate compensation.

5.    For the reasons stated hereinabove, I hold that the complainants are entitled to refund of the entire amount paid by them to the OP alongwith appropriate compensation.  The learned counsel for the complainants has drawn my attention to clause 15 of Haryana Real Estate (Regulation And Development) Rules 2017 which inter-alia provide for payment of interest by the promoter to the allottee at State Bank of India highest marginal cost of lending + 2% where the promoter fails to give possession of the apartment/plot/building in accordance with terms and conditions of agreement for sale in terms of section (4) of section 19.   As per the information obtained from the website of State Bank of India, the maximum marginal cost of lending rate is 8.7%.  This is not disputed by the learned counsel for the opposite party.  Adding 2% to the aforesaid rate, the complainants, in my view, are entitled to compensation in the form of interest @ 10.7% per annum, from the date of each payment.  

6.      The complaint is therefore, disposed of with the following directions:

(i)    The opposite party shall refund the entire principal amount of Rs.12675000/- to the complainant alongwith compensation in the form of simple interest @ 10.7% per annum from the date of each payment till the date of refund.

(ii)    The opposite party shall also pay a sum of Rs.25,000/- as the cost of litigation to the  complainant.

(iii)    The payment in terms of this order shall be paid within three months   from today.